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PETITIONER: SMT. RAM SAKHI DEVI UTTAR PRADESH PRADHAN ADHYAPAK PARISHAD&

       Vs.

RESPONDENT: U.P. SECONDARY EDUCATION SERVICE COMMISSION ,STATE OF U.P. &

DATE OF JUDGMENT:       20/03/1997

BENCH: K. RAMASWAMY, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                             WITH                 CIVIL APPEAL NO.1825 OF 1986                          O R D E R CA NO.472/86:      This appeal  by special  leave arises from the judgment of the  Division Bench  of the Allahabad High Court, made on November  6,  1985  in  Civil  Miscellaneous  Writ  Petition No.10982/85.      The admitted facts are that the appellant was appointed as Headmistress  of Junior  High School,  Kamla Nehru  Kanya Vidyalaya, Shiv  Shankari  Dham  Pachewara  Chunal  Mirzapur which was  upgraded  in  July,  1982  as  High  School.  The Managing Committee  advertised through  newspaper under  the U.P. Intermediate  Education Act,  1921 for selection of the candidates, obviously, under Section 16-E. The committee had selected  the   appellant  on  December  17,  1983  and  the appellant was  sought to be ratified. Since the ratification was not  accorded by  the District  Inspector, the appellant had approached  by the  High Court.  The High  Court relying upon its earlier decision in Jai Prakesh Sharma vs. State of U.P. &  Ors. [WP  No.174/85] dismissed  the  writ  petition. Thus, this appeal by special leave.      Though the  High Court  may not be correct in following its judgment  in dismissing  the writ  petition, on facts we find that  there is no substantial difference in the result. The admitted  position is  that the U.P. Secondary Education (Services Commission)  Act, 1982,  had come  into force with effect from  July 14,  1981. Section 10 of the Act specifies the purpose  of making  appointment to the posts of teachers specified in the Schedule. It postulates thus:      "(1) For  the   purpose  of  making      appointment of  a teacher specified      in  the  Schedule,  the  management      shall notify  the  vacancy  to  the      Commission  in   such  manner   and      through such  officer or  authority      as may be prescribed.      (2)  The procedure  of selection of      candidates for  appointment to  the      posts of  such  teachers  shall  be

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    such as may be prescribed:      Provided that the Commission shall,      with a  view to  inviting  talented      persons, give wide publicity in the      State  to  the  vacancies  notified      under sub-section (1)."      It is, thus, clear that Section 10 envisages two steps, namely, every  institution is  enjoined  to  notify  to  the Commission the  vacancies through  such officer or authority as  may   be  prescribed.  The  Service  Commission,  before selection, will give wide publicity by inviting applications from all  qualified candidates  so that  talented candidates would apply  for get  selected  to  the  post.  Though  this Section has  been amended  by Amendment  Act 12 of 1985, the same is not relevant and has no application to this case. It reads as under:      "Notwithstanding  anything  to  the      contrary    contained     in    the      Intermediate Education Act, 1921 or      the Regulations made thereunder but      subject  to   the   provisions   of      Sections 18,  21-B, 21-C.  21-D, 33      and 33-A on or after July 10, 1981,      be made  by the  management only on      the    recommendation     of    the      Commission;      (b)  every appointment of a teacher      specified in  the Scheduled, shall,      on or  after July  1, 1981, be made      by  the   management  only  on  the      recommendation of the Board."      Thus, it  could be seen that after coming into force of the said  Amendment Act,  the power  of  the  Management  to constitute a  Selection Committee  under Section 16-E of the U.P. Intermediate  Act has  been  taken  away.  Instead  the selection has  to be  made only through the Commission under the Act and the selected candidate shall be appointed on its recommendation and  in no other manner. The selection by the School under Intermediate Education Act, 1921 is illegal.      Learned counsel  for the  appellant has sought to place reliance on  Section  33-A  of  the  Regulation  made  under Section 16-E of the U.P. Intermediate Act to regularise such ad hoc  appointments. Undoubtedly,  every  teacher  directly appointed before  the commencement  of  the  Act,  in  other words, on  ad hoc basis, against the substantive vacancy may be regularised  under Section 33-A; but it cannot be used as a routine.  It is  mandatory for the management to notify to the Commission  and in  case the  Commission  is  unable  to recommend the  selected candidates within a reasonable time, any candidate  appointed on  ad hoc  basis will be deemed to have been appointed in substantive capacity. The resourse to Section 33-A  should be made sparingly and not as a routine. If Section  33-A route  is adopted  as a routine, the entire process of  Selection contemplated  under the  Act would  be given a  decent burial  and illegal  appointment would  gain legitimacy. Under  these circumstances, we do not think that the counsel  is right in contending that the appellant could be regularised under Section 33-A of the Regulation.      The appeal is accordingly dismissed. No. costs. CA NO.1825/86:      The appeal  having become infructuous, is dismissed. No Costs.